Andrew Lilico: On advisory juries

Juries have a surprisingly significant place in our cultural understanding of justice.  The trials of Socrates, of William Penn, of OJ Simpson, the refusal of juries to convict when death penalties would follow for adultery in the Commonwealth or for theft in the early nineteenth century, the dramas of 12 Angry Men or LA Law, the complexities of the Guinness Four or Louise Woodward cases — for the educated layman, these and other examples are branded into what we mean by due process.  In recent years, jury trial has taken on an added political dimension, as it has come to be seen as iconic of the struggle to sustain key British constitutional features against encroachment by Europhiles, leftist “modernisers”, and authoritarians.

One issue of recent interest has been precisely where it is best to draw the line between cases in which a jury trial is to be assumed or guaranteed (as opposed to being available, perhaps, upon appeal being granted to a higher court) and cases in which a judge (say, a magistrate) might hear a case without a jury.  Such a line has always existed, and it is a pragmatic question, into which issues such as expense or the threat of jury intimidation are normally thought to enter, where it should be drawn.  I would have much to say on the matter, but that is not what I want to talk about today.

On this occasion, I wish to focus on the recent debate as to whether certain sorts of cases are intrinsically unsuited to jury trial.  The kinds of cases people have in mind are those that turn crucially upon sometimes very involved expert evidence —fraud trials are perhaps the most well-known examples, though child abuse cases are also relevant, as would presumably be future criminal cases of alleged cartels.  The idea of the jury sceptic is that juries are fundamentally ill-suited to arbitrating in such cases, because understanding them requires either a level of technical expertise that juries do not have, or a degree of experience in listening to such evidence that juries do not have.  If the jury simply cannot understand the case properly, how can it come to a useful verdict?  Given these pragmatic vices of a jury, might it not, so the thought goes, be better to have a suitably expert judge, or perhaps a panel of suitably expert judges, come up with the verdict?

What is the function of a jury?  Why should they be used in any case in which an expert and experience judge is available?  I propose the following two classes of reason:

(A) Pragmatic virtues: There are a number of pragmatic virtues to having a case heard by multiple people: it reduces the chance that someone was distracted at the moment vital evidence was being heard, or was subconsciously biased against or irritated by one witness, or misunderstood one thing despite having followed the rest of the case carefully, or misremembered something.  By splitting the task over many people, then having them debate the evidence together after hearing it all, jurors are able to fill in each other’s gaps.  Such pragmatic virtues are, of course, defeasible by pragmatic vices — if such were really the key reason for a jury, then the case not to have a jury in very complicated cases would be strong.

(B) Virtues of principle: Having a jury enables justice to be seen to be done, and the community to participate in the process. Since the community participated in the verdict, it is more difficult later to claim that the guilty person was only imprisoned because oppressed by her political enemies or by some cabal within the police that had taken against her.  A jury of one’s peers sat through the evidence and concluded (more-or-less unanimously) that one was guilty. The verdict might still be wrong, but if so it is more likely to be error than conspiracy.  Further, the jury adjudged that the law in question was acceptable to ordinary citizens both as a crime and in terms of the plausible punishment (cf. the unwillingness of juries to convict for certain offences in the past either because the “crime” was unacceptable — as in the Penn and Mead case — or the punishment was unacceptable — as with the death penalty for adultery during the Commonwealth).  Having to explain the case to laymen also ensures that the case is set out as clearly and simply as possible, which should give it the greatest chance of being understood by the defendant himself, so that he has the best chance to challenge it.  Transparency, clarity, and simplicity are the key virtues here.

Imagine a complicated case in which there were no jury.  The need to make the case simple disappears, and it turns on expert evidence that is wholly inaccessible to the general public, and no effort is made or needed to simply things.  In the end a verdict is produced, but the exercise is rather like that of the pope adjudicating between two professors in some abstruse theological debate — no-one but the participants knows what it means.  Consequently, no signal is produced for the rest of society as to what behaviour is illegal — no-one has learned something new about what not to do in order not to go to jail. And if there really were a conspiracy to imprison the accused, how would anyone discover it?  How could laymen declare, upon a fully naked understanding of the crime and its likely punishment, that the law in question was unacceptable to the community (waiting for the next election would be too late for the imprisoned accused!)?

And yet…the pragmatic vices of a jury in such cases remain.  So what to do?  I propose that the Louise Woodward case gives us a clue to an appropriate model.  In that case, Judge Zobel set aside the verdict of the jury — second degree murder — and instead convicted Woodward of the (significantly) lesser charge of involuntary manslaughter (this made the difference between mandatory life imprisonment and immediate release for time served — 279 days).  In that case the technicality on which he proceeded was that following a guilty verdict, his legal system permitted him to convict of any charge in the indictment, but we do not need to get into operational technicalities here, for the general principle at issue is clear — must a jury verdict always be binding, or could (sufficient of) the Virtues of Principle be delivered by advisory verdicts that the judge can set aside?  I suggest that, if the choice is (as it may be) between having no jury for highly complex cases and having an advisory jury fur such cases, for which the verdicts can be set aside by the judge, then the latter is clearly superior.  For it should be an issue of principle that in all serious cases some official lay persons are appointed to sit through all the evidence, witnessing how the defendant was treated, that the process was fair, that all reasonable efforts were made to set out the case and simply and clearly as possible, that the crime at issue made sense qua crime, and that the available punishments were not wildly disproportionate to any offence caused, and that at the end their verdict be heard.  If the judge needs to disagree, so be it, but he had better explain precisely why he disagrees, and if cases against certain people, or a cases involving a certain sort of offence, regularly result in clashes between judges and juries, that should be a matter for senior judges and policymakers to reflect upon.
That justice be seen to be done is deeply important.  Lay persons may not always be equipped to decide outcomes absolutely, but their views should be heard and considered valuable, nonetheless.

Comments

[Ken]

I would have thought that an advisory jury would have the same effect as no jury. The people would no longer be the final arbiters of our laws. If a judge can overrule a jury then it is waste of time to have a jury in the first place, if the state can choose in which cases it will allow a jury then it becomes state law and not peoples law.

[Tony Makara]

This is a very complicated issue because we want people's juries in the name of democracy, yet clearly some people lack the maturity or intelligence for jury service. The OJ Simpson case in the states was a classic example of the failures of the jury system. Perhaps it would help if juries were more rigorously selected with tests for emotional maturity and the ability to comprehend a criminal case.

[William Norton]

Tony Makara:The OJ Simpson case in the states was a classic example of the failures of the jury system.

A failure only in the sense that it illustrates a greater strength. When it came to the crunch, the jury weren't prepared to believe the Police, whose credibility had been shredded during the trial. An equivalent here might be, say, the Ponting trial where a jury wasn't prepared to convict for leaking the papers about the Belgrano. When policemen complain about clever lawyers it's usually a sign of unclever policemen.

Failure to secure a conviction doesn't necessarily mean the jury part of the system is the cause of the failure. Fraud trials might well run more smoothly with a jury of 12 City solicitors (but don't bet on it), but wouldn't a better approach be to employ a more competent Serious Fraud Office or enact simpler legislation?

After all, we've had a spot of bother with expert witnesses over the years. Would people be happier if, say, religious hatred cases were adjudicated by a panel of expert ayatollahs, or all child abuse cases overseen by Islington social services?

[Tony Makara]

William Norton, a big concern has to be when juries have to oversee complicated cases involving finance and the like. Such cases really ought to require a competency-test being taken to ensure that the subject matter is understood. To allow any citizen, no matter how level-headed and fair, to judge complex cases becomes a lottery.

Returning to the Pointing case, I remember at the time I was 22 and thought of him as being a traitor and if I had been asked to serve on a jury, at that age, I wouldn't have been able to given him a fair trial. Of course now 23 years later I'd be more inclined to judge the case on its merits rather than on my own emotions. So I think its a case of jurors being ready, emotionally mature, and intellectually able to understand the situation.

[David Belchamber]

Has any thought ever been given to reversing the roles in a jury trial? The judge - a trained lawyer sitting in a court the whole time, able to question witnesses - is best placed to ascertain guilt.

If s/he gets it wrong, the defendant can appeal and if too many of the judge's verdicts are overturned, s/he is clearly not a very good judge.

Judges are not always very good with the sentences they hand down and a jury might well be more on the ball than the judge in this respect.

[Tony Makara]

David Belchamber, I feel the QC already does that job to great effect but I'd certainly like to see judges elected to reflect public attitudes to sentencing. People can decide whether they want a liberal judge or more of a hardliner. There are many factors involved in setting the right sentence and no two cases are the same so absolute expertise is required.

[Angelo Basu]

Perhaps this is all coming at things from the wrong end.

If a case cannot be put simply and clearly enough to make it intelligible to a jury it suggests to me that perhaps the charge should not have been brought in the first place. This is particularly true in the high profile instances typically used to defend proposals to remove juries, ie fraud and cartel cases (the latter being yet another unnecessary bit of NuLab legislation given that the entirety of the cartel offence was already covered by the Common Law offence of conspiracy to defraud). However, the underlying factual issue to be determined in both of those sorts of case is the dishonesty of the defendant. Over many years there have been attempts to define dishonesty but in the end, its power and value as a measure of criminality and the moral sanction that goes with it is that the concept is one that should be clearly intelligible by all decent law-abiding citizens.

The difficulty comes in asking juries to infer from what was done or omitted to be done by the defendant that he was dishonest because defining those acts and omissions is problematic. However, the value of a jury is precisely there because we are all able to cut through detail to make a judgment as to whether someone behaved in an honest/neutral way or dishonestly.

This can lead to uneven application (eg the perception in the early 90s that Snaresbrook juries were much less likely to consider certain sorts of behaviour to be dishonest than any other juries possibly as a result of the prevaling mores of its East End catchment area), but that is in the nature of any system which places value on making criminal sanctions dependent on the beliefs of the general public which will have different attitudes in different areas. Judges are no different and all vary as to the sorts of scrote they will treat strictly and the ones who even if guilty are not "amongst the worst" sort they come across. Resources and concentrations of particular types of crime also distort the treatment received (eg in the mid 90s Dover Magistrates would accept any half-plausible story about personal use to accept guilty pleas and impose non-custodial sentences for importation of up to a kilo of marijuana, whereas anywhere else in the country, possession of a tiny fraction of that amount would be pursued by the Police and CPS as possession with intent to supply and almost certainly lead to imprisonment).

A former Lord Chief Justice suggested in a humorous after-dinner speech that English Criminal law could be drastically simplified without the real loss of any effectiveness by replacing the entire cannon with two new broad offences; first, being out of order and second, being bang out of order. The art of prosecuting Counsel really is to demonstrate to the jury that one of these "offences" has been committed, just in the context of the more complex indictments and law that exists. As defence Counsel, if you can cast doubt as to whether the defendant really has been out of order (you know you're onto a winner if you can get jurors to giggle at prosecution witnesses' evidence) your man is likely to walk free.

On the issue of use of juries in sentencing, this is interesting and would certainly help to restore confidence in the penal system (I suspect that juries would actually not end up handing out massively longer sentences across the board but would probably put more weight on pleas in mitigation and psychological and other factors than case hardened judges do). However, this could only be done in practical terms if there were no significant capacity constraints in terms of prison and non-custodial remedies. It might be a good counterbalance to criticism of the policy to build a large number of new prison places to introduce jury decisions on sentencing.

[Matt Wright]

Jury trial should not be withdrawn because the case cannot be put in a way that the public can understand. I dread to think where that would lead! God save us from experts! I agree with Andrew's original points but would tend to uphold them rather than start giving in. The only possible concession would be to ask potential jurors to present CVs in the tiny minority of cases that exhibit special complications. Then jurors could be randomly selected from a filtered pool for that rare situation only. Otherwise I would rather that we had a rock solid written constitution to stop any Govt ever fiddling with this.

[Angelo Basu]

Matt- it is already possible for some degree of jury screening to occur. It is quite common while empanelling a jury in a case involving substantial amounts of documentary evidence of a numerical nature for the trial judge to ask if any jurors have difficulties with their eyesight or reading and understanding such documents. As this is not done in open court I've often seen jurors excusing themselves in this way (it is of course also a good way if you are on jury service to avoid lengthy and dull cases in the hope of getting something more juicy). There is also some scope for asking for certain jurors to be excused (eg if defending a rape case a juror walks in carrying some tract of feminist theory you'd probably ask for them not to be in your jury).

[Matt Wright]

Thanks Angelo, that would lend weight to my idea that in a few special caes we could ask for CVs and draw the jury randomly from a pool of people so screened. Otherwise as I say I really don't think we should meddle here and we should require cases to fought in suha a way tha the public and those involved can understand them!